Significant labor law changes will bypass Congress

By Seth Borden
Monday, January 17, 2011

When President Obama took office in early 2009, many expected significant legislative changes in the area of traditional labor law to facilitate union organizing in the private sector. But the new Republican majority in Congress on the one side and the Democrats' simple Senate majority and presidential veto pen on the other make passage of sweeping legislation like the Employee Free Choice Act -- or for that matter the converse Secret Ballot Protection Act -- all but impossible.

Employers should still expect significant changes, however, as the president will instead advance his regulatory agenda administratively through the National Labor Relations Board (NLRB) and the issuance of executive orders. If you're running a nonunion workplace today, these developments will make it easier for unions to organize your employees. Regardless of one's personal feelings about unions or union representation, there's no question that this increased government oversight, regulation and involvement will have a significant impact on large and small businesses alike.

There has long been speculation that the White House intends to roll out a so-called "High Road Contracting" initiative aimed at federal contractors -- a policy that could have major implications for the Washington region. This regulatory framework would grant a preference to companies that provide their employees with a specified minimum level of wages and benefits, and that demonstrate a history of compliance with various labor laws.

Contractors' ratings would be adjusted upward or downward based on information in a database on the number of labor complaints against them -- for example, by unions attempting to organize their employees. Proponents have indicated in memoranda that the initiative would create a "stakeholder" advisory council, including representatives of labor unions, to oversee implementation. So the awarding of a contract would no longer be based solely on the lowest bid and qualifications of the vendor, but on whether it met stakeholders' standards for compensation, benefits -- and openness to unionization.

The NLRB now has a quorum of members, a majority of whom are Democrats. As a member the past several years, current Chairman Wilma Liebman was a frequent dissenter and outspoken critic of NLRB decisions that limited the rights of employees and unions under the National Labor Relations Act. The NLRB appears intent on reversing many of the Bush administration board's decisions and has already sought briefs on a number of these issues. Among the issues the current board will revisit are union access to employer property; whether employees are entitled to a secret ballot option in organizing elections; and the practice of union "salting" -- or the placement of professional organizers as employees in a non-union workforce.

Already the NLRB has shown renewed aggressiveness in the expansion of remedies for violations of labor relations law. The board's acting general counsel has directed regional offices to pursue preliminary injunctions against employers more frequently. Last month, the board proposed a new rule requiring union access to workplace bulletin boards and employee contact information as available remedies.

Employers cannot afford to presume that a split government means they do not need to prepare for significant changes in the area of traditional labor law. There will still be plenty of significant regulatory changes courtesy of the White House and the NLRB.

Seth Borden is a partner at McKenna Long & Aldridge and a member of the firm's labor and employment practice. He co-writes the firm's blog, Labor Relations Today (, covering developments in labor law.

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